Invalidity of a real estate pledge agreement jurisprudence. Recognition of the mortgage agreement as invalid. If the borrower breaches the contract

Tambov regional court (Tambov region) - Civil and administrative

Prevents the creditor or other authorized person from exercising the rights secured by the prohibition, in particular, by filing a claim for foreclosure on such property (paragraph 5 of Article 334, Articles 348, 349 of the Civil Code of the Russian Federation). The committed violations are of a significant nature, without their elimination by canceling the contested court decisions, it is impossible to restore the violated rights of the applicant. Presidium of the Tambov Regional Court...

Appeal Resolution No. 22-6037/2019 22K-6037/2019 dated September 11, 2019 in case No. 22-6037/2019

Krasnodar Regional Court (Krasnodar Territory) - Criminal

The car is practically new, bought on credit for an amount of more than 1,300,000 rubles and is the subject of a pledge under a loan agreement with a bank, therefore, by virtue of Art. 333, 334 of the Civil Code of the Russian Federation, it cannot be levied on the claims of third parties. In addition, the amount of these claims is significantly lower than the actual value of the seized property. No reason to...

Decision No. 33-15181/2019 dated September 6, 2019 in case No. 33-15181/2019

Sverdlovsk regional court (Sverdlovsk region) - Civil and administrative

Declared size. In order to ensure the fulfillment of the obligations of the borrower under the agreement with Zabelina I.E. signed a real estate mortgage agreement. In accordance with the provisions of Articles 334, 348, 259, 350 of the Civil Code of the Russian Federation, the requirement to foreclose on the subject of pledge was satisfied reasonably, since by virtue of the law the pledgee has the right to foreclose on the pledged property, ...

Decree No. 44G-56/2019 4G-857/2019 dated September 4, 2019 in case No. 2-1310/2018

Smolensk regional court (Smolensk region) - Civil and administrative

Fomin E.E., expressing disagreement with the appellate ruling, points out that the judicial board did not apply the provisions of paragraphs. 2 p. 1 art. 352 of the Civil Code of the Russian Federation, since he is a bona fide purchaser, at the conclusion of the sale and purchase agreement he was not aware of the fact that the purchased car was in pledge, he was presented with the original passport ...

Resolution No. 44G-292/2019 4G-3786/2019 dated September 4, 2019 in case No. 2-272/2019

Supreme Court of the Republic of Bashkortostan (Republic of Bashkortostan) - Civil and administrative

Mortgage by virtue of law), and the liability of the borrower - an individual is insured on the basis of a financial risk insurance contract of the creditor. At the same time, guided by the provisions of Articles 334, 348, 349, 352 of the Civil Code of the Russian Federation, he came to the conclusion that this circumstance in itself cannot serve as a basis for canceling the court decision taken in the case, ...

Decision No. 2-3438/2019 dated August 30, 2019 in case No. 2-3438/2019

Vasileostrovskiy District Court (City of St. Petersburg) - Civil and administrative

Other laws, other legal acts or agreement. By virtue of paragraph 1 of Art. 408 of the Civil Code of the Russian Federation, proper performance terminates the obligation. According to paragraphs. 1 p. 1 art. 352 of the Civil Code of the Russian Federation, the pledge terminates with the termination of the obligation secured by the pledge. A note about the termination of the mortgage must be made in the register in which the mortgage agreement is registered. By virtue of Art. ...

Decision No. 2-4669/2019 dated August 30, 2019 in case No. 2-2633/2019~M-1601/2019

Dzerzhinsky district court of Volgograd (Volgograd region) - Civil and administrative

Pledged property from the pledgor to another person as a result of alienation of this property for compensation or free of charge (except for the cases specified in subparagraph 2 of paragraph 1 of Article 352 and Article 357 of this Code) or by way of universal succession, the pledge shall be retained. The legal successor of the pledgor acquires the rights and bears the obligations of the pledgor, with the exception of the rights and obligations, which in ...

Decision No. 2-3124/2019 2-3124/2019~M-2606/2019 M-2606/2019 dated August 30, 2019 in case No. 2-3124/2019

Kirovsky District Court of Rostov-on-Don (Rostov Region) - Civil and administrative

Or improper performance by the debtor of an obligation secured by a pledge. As established in court, the defendant improperly with DD.MM.YYYY fulfilled the obligations secured by the pledge. Article 334 of the Civil Code of the Russian Federation states that by virtue of a pledge, the creditor under the obligation secured by the pledge (the pledgee) has the right, in the event of the debtor's failure to perform or improper performance of this obligation, to receive ...

Oktyabrsky District Court of Krasnoyarsk (Krasnoyarsk Territory) - Civil and administrative

Pledged property from the pledgor to another person as a result of alienation of this property for compensation or free of charge (except for the cases specified in subparagraph 2 of paragraph 1 of Article 352 and Article 357 of the Civil Code of the Russian Federation) or in the order of universal succession, in accordance with Article 353 of the Civil Code of the Russian Federation, the pledge is preserved. The legal successor of the pledgor acquires the rights and bears the obligations of the pledgor, with the exception of...

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The expediency of concluding a contract

The conclusion of a pledge agreement should be based on the principles of economic expediency, and the parties should not have selfish motives when signing the agreement, including the goal of causing property damage to third parties.

As for the relations that arise between banking organizations and other participants, the drawing up and signing of a pledge agreement is one of the criteria for ensuring the fulfillment of obligations by the borrower.

If the insolvency procedure of a person is initiated, then other creditors try in every possible way to challenge the existing pledge agreements. However, the judiciary recognizes this right as futile if it is established that the borrower, concluding such an agreement, did not try to evade liability to other citizens and organizations.

The judge is also guided by evidence that indicates that at the time of drawing up the pledge document, the borrower showed no signs of insolvency.

That is, if there was an economic feasibility of concluding a pledge agreement, and the agreement did not carry the threat of harm to other creditors, then the court will rule in favor of the one who is declared bankrupt under the appropriate procedure.

If the borrower was fully solvent at the time of signing the pledge agreement, then this is a clear sign that the agreement was drawn up without the intention of causing harm to third parties, and it is recognized as valid by law.

Ownership of the mortgaged property

An agreement on pledge can be concluded only with the owner of the thing that is transferred to the pledgee - this is a general rule established by civil law.

The contract is often recognized as invalid in the case when the pledgor transferred to the pledgee the property to which he did not have the right of ownership.

Courts in their practice often encounter situations where pledgees are bona fide persons who have no idea that the pledgor, by transferring the thing, violated someone's interests. The same applies to the owners of pledged things.

Civil law protects the rights of bona fide pledgees, where the new owner of the thing is the pledgor by virtue of the law (clause 2, article 335 of the Civil Code of the Russian Federation).

The provisions of this article contain a reference to the unfair taking of another's property. For example, if the thing was stolen from the previous owner or left his possession due to illegal actions, then the above rules are not applicable.

In judicial practice, there are cases when the pledgee was in good faith from the point of view of the law, and the new owners were not aware of the signing of the pledge agreement, the subject of which was already their thing by right.

The courts can also take the side of bona fide new property owners, regardless of the fact that the mortgagee was not notified about the mercenary purposes of the actual pledger.

Grounds for invalidating an agreement

Remember! The following criteria serve to assess and recognize a pledge agreement as invalid:

• lack of legal capacity of at least one of the parties to the agreement;
• lack of legal right to sign a pledge agreement;
• one or both parties are citizens under the age of 18;
• the contract is not registered in the prescribed manner;
• lack of approval of the transaction by the spouse if the contract is concluded by a citizen who is married;
• the contract does not contain the conditions that are basic for the conclusion of the transaction.

As for the situation in which the contract is void due to the incapacity of the party, this can be recognized in court or confirmed by documents that indicate the age of the person who entered into the transaction.

The same can be said about the fact that if a person is under 18 years old, and he does not have with him the consent to conclude a transaction from legal representatives, the pledge agreement will be declared invalid.

All pledge agreements, the subject of which are real estate objects, must undergo the procedure for registering the right with the Rosreestr authorities. Otherwise, the transaction is considered void.

Citizens who are legally married are required to obtain each other's consent that there are no objections to the conclusion of a pledge agreement with one of them.

If the parties, when drawing up the pledge agreement, did not refer to the main conditions for the validity of the document, then it can also be considered void.

Provided jurisdiction

The question of the correctness of determining the jurisdiction of such cases causes some difficulties for citizens. So, disputes between individuals should be resolved in courts of general jurisdiction, and if an organization is involved in the case, then the application is submitted to the regional arbitration court.

Please note! If the subject of the pledge agreement is a real estate object, then all claims are considered at the location of the relevant property (part 1 of article 30 of the Code of Civil Procedure of the Russian Federation).

Also, challenging the rights to real estate, recognizing the pledge agreement as void, is within the jurisdiction of the judges on whose plots the specified objects, buildings and structures are located.

The order of the procedure

In order to recognize the pledge agreement as void, it is necessary to prepare a statement of claim according to the number of persons participating in the case. Copies, and in some cases original documents, are attached to the claim as evidence of challenging the transaction.

If the statement of claim is not drawn up according to the rules established by the procedural legislation, or the number of statements does not match the number of persons participating in the case, then the judge has the right to leave the claim without movement, indicating the correction of deficiencies until a certain date.

If the limitation period is missed, then the applicant must, along with the application, attach a petition for the restoration of the deadline for filing a claim. Documents serving as proof of good reasons for the pass are also attached to it.

The limitation period for cases on recognition of a pledge agreement as invalid is one year.

An exception is the following situations in which this period is equal to three years:

• conclusion of an imaginary or feigned transaction;
• the pledge agreement is contrary to the norms and principles of morality and law and order;
• conclusion of an agreement with an incompetent person.

The defendant in the lawsuit will be the other party participating in the transaction.

Important! After filing a statement of claim, the judge shall, within five days, issue a ruling on accepting the case for proceedings, of which he shall notify the parties. The first court session takes place in the form of a conversation to establish the details of the future proceedings.

After that, the judge sends a notice of summons to court for the first court session.

Based on the results of the proceedings, which should last no more than two months, a decision is made. Before it enters into force, it may be appealed by the parties.

The appeal is submitted to the court of first instance, which sends it to a higher judicial body.

Watch the video. General provisions on collateral:

Legal Consequences

In the case when the judge makes a decision indicating the recognition of the pledge agreement as null and void in full or in any part, then for the parties this means only one thing: all legal consequences of the agreement cease to have legal grounds.

So, for the mortgagee, this may be expressed in the absence of loan security. The mortgagee in this situation practically does not risk anything. However, the lender may subsequently change the terms of the loan agreement and oblige the borrower to pay the entire amount.

If the pledgee refuses to comply with the court decision regarding the return of property, then the pledgor will need to apply to the court. In this case, the Federal Bailiff Service of Russia will control the process of returning the subject of the pledge agreement.

Thus, if the agreement is declared invalid, legal consequences occur for both parties to the legal relationship that has arisen.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues.

Arbitrage practice

Consider the judicial practice on the recognition of a pledge agreement as invalid.

Case 1

The subject of the pledge was a vehicle, the passport of which was also held by the pledgee. In case of systematic default by the borrower, the creditor filed a claim with the court for the return of funds with foreclosure on the pledged movable property.

The judge satisfied the creditor's requirements, but at the stage of enforcement proceedings it was established that the unscrupulous borrower made a duplicate of the title and sold the vehicle, which by that time was deregistered by the traffic police.

The lender again applied to the court with a statement on the imposition of encumbrances on the car, as well as on the recovery of funds at the expense of the collateral. The judge allowed the claim in part.

The new owner of the vehicle filed a claim for the recognition of the pledge agreement as void due to the fact that it was not concluded.

The first thing to do is to declare the arrest of the vehicle in accordance with the provisions of Art. 353 of the Civil Code of the Russian Federation. This measure will keep the property from being sold while the trial is going on.

The new owner of the car is obliged to prove his good faith when considering the case, since in this case the citizen purchased a vehicle whose passport was re-issued.

By virtue of the provisions of clause 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 6, the Plenum of the Supreme Arbitration Court of the Russian Federation N 8 of 07/01/1996 "On some issues related to the application of part one of the Civil Code of the Russian Federation", one of the essential conditions of the pledge agreement is an indication of the terms and amount fulfillment of obligations. Otherwise, the transaction is void.

If there is a loan agreement, then the above condition can be formalized as a reference to the corresponding loan agreement.

Case No. 2-2719/2017

DECISION

IN THE NAME OF THE RUSSIAN FEDERATION

Traktorozavodsky District Court of Volgograd

composed of:

presiding judge Malysheva E.A.,

under the secretary Likhach O.V.,

with:

the representative of the plaintiff Zakharova T.A. - Parshina E.A.,

the representative of the defendant LLC "Money in favor" - Rytikova A.Yu.,

having considered in an open court session on October 05, 2017 in the city of Volgograd a civil case on the claim of Zakharova Galina Alexandrovna against the limited liability company "MONEY IN POLZU" to invalidate the mortgage agreement (mortgage of real estate),

SET UP:

The subject of the dispute is a 1/2 share in a two-room apartment. The specified DATA WITHDRAWAL share in the apartment is restricted in the form of a mortgage. The owner of another DATA WITHDRAWAL share of this apartment is Zakharov D.Yu.

Plaintiff Zakharova T.A. and 3rd person Zakharov D.Yu. among themselves DATA EXTRACTED.

Zakharova G.A. applied to the court with the said claim, in which she asks to invalidate the mortgage contract for the indicated 1/2 share of the apartment, concluded between her and LLC MFO "MONEY IN POLZU" (subsequently renamed LLC "Money in favor"). In support of her claims, she indicated that on October 4, 2016 she borrowed 250,000 rubles from the defendant, about which she entered into a loan agreement with the defendant dated 04.10.2016. To secure the repayment of this loan, on the same day, she entered into an agreement with the defendant to pledge the share of the apartment belonging to her DATA WITHDRAWAL No. DATA WITHDRAWAL on the street. ADDRESS WITHDRAWN, which was registered in the state register of real estate. Zakharova G.A. considers that the contested pledge agreement was concluded in violation of the law, that is, without observing the notarial form of this agreement, since the specified apartment is in the common shared ownership of the plaintiff and her son according to DATA WITHDRAWAL shares from each. Therefore, the plaintiff asks to recognize the specified contract of pledge of her share in the apartment as invalid.

Plaintiff Zakharova T.A. did not appear at the hearing. About the day, place and time of the hearing of the case duly notified. She requested that the case be considered in her absence.

The representative of the plaintiff Zakharova T.A. supported the claims at the hearing.

The representative of the defendant, DENGI V POLZU LLC, did not recognize the claim at the court session, he explained to the court that in order to conclude a pledge agreement for real estate in common shared ownership, notarization of this agreement and the consent of the other co-owners of the residential premises are not required.

third party Zakharov D.Yew. did not appear at the hearing. He was duly notified of the day, place and time of the hearing, the reasons for his failure to appear in court are not known.

The court, after hearing the representative of the plaintiff, the representative of the defendant, having examined the materials of the case, finds the claims unfounded and not subject to satisfaction on the following grounds.

According to Art. 1 of the Federal Law No. 102 “On Mortgage” under an agreement on pledge of real estate (mortgage agreement), one party - the pledgee, who is a creditor under an obligation secured by a mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other parties - the mortgagor preferentially over other creditors of the mortgagor, with exceptions established by federal law. To a pledge of immovable property arising on the basis of a federal law upon the occurrence of the circumstances specified therein (hereinafter referred to as a mortgage by virtue of law), the rules on a pledge arising by virtue of a mortgage agreement shall be applied accordingly, unless otherwise established by federal law.

In accordance with Art. 2 of the Federal Law of July 16, 1998 N 102-FZ “On Mortgage (Pledge of Real Estate)”, a mortgage can be established to secure an obligation under a loan agreement.

By virtue of h. 1 Article. 5 of the Federal Law “On Mortgage (Pledge of Real Estate)”, under a mortgage agreement, real estate specified in paragraph 1 of Art. , the rights to which are registered in the manner established for state registration of rights to real estate and transactions with it, including 3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.

Part 2 of Art. 7 of the Federal Law "On Mortgage (Pledge of Real Estate)" provides that a participant in common shared ownership may pledge his share in the right to common property without the consent of other owners.

If, at the request of the pledgee, foreclosure is applied to this share during its sale, the rules of Article 250 both on the pre-emptive right of purchase belonging to the other owners and on foreclosure on a share in the right of common ownership are applied.

On the basis of Part 1 of Article 10 of the Federal Law “On Mortgage (Pledge of Real Estate)” (as amended in force at the time of the disputed relationship), a mortgage agreement is concluded in writing by drawing up one document signed by the parties and is subject to state registration. The mortgage agreement is considered concluded and comes into force from the moment of its state registration.

I DECIDED

In the claim of Zakharova Galina Alexandrovna against the limited liability company "MONEY IN POLZU" on the invalidation of the mortgage agreement (mortgage of real estate), concluded on October 4, 2016 between the limited liability company "MONEY IN POLZU" and Zakharova Galina Aleksandrovna - to refuse.

The decision can be appealed on appeal to the Volgograd Regional Court within one month through the Traktorozavodskiy District Court of Volgograd.

FULL NAME5 went to court with this claim, indicating that the DATE WITHDRAWAL concluded with the defendant an agreement for participation in the shared construction of an MKD DATA WITHDRAWAL at the ADDRESS WITHDRAWN, under the terms of which the plaintiff undertook to pay the cost of a one-room apartment in times ...

The Inspectorate of State Housing Supervision of the Volgograd Region appealed to the Interdepartmental Commission for assessing the state of residential premises of the municipal housing stock and apartment buildings on the territory of the Traktorozavodsky district of Volgograd...

IN THE NAME OF THE RUSSIAN FEDERATION

Butyrsky District Court of Moscow, consisting of: the presiding judge at the secretary, having examined in open court a civil case under the claim of Kiryanov A.C. to PJSC "Rosevrobank", Limited Liability Company "Alliance" on the recognition of the contract of pledge of an apartment as invalid, the application of the consequences of the invalidity of the transaction, the recovery of court costs,

SET UP:

The plaintiff filed a lawsuit against Rosevrobank PJSC, Alliance LLC to invalidate the real estate pledge agreement dated 01/01/2011 between the plaintiff and Rosevrobank PJSC, in relation to the residential premises located at the address: Moscow, st. . Butyrskaya, 6, with a total area of ​​37.3 sq.m.

Between the plaintiff and the defendant PJSC «Rosevrobank» a loan agreement was concluded, according to which he received a loan of cash in the amount of 2,500,000 rubles. for 60 months. The loan was received for consumer needs. At the same time, as security for loan obligations, the Bank entered into a real estate pledge agreement with the plaintiff, namely a one-room apartment.

Subsequently, the Bank entered into an agreement on the assignment of rights of claim with Alliance LLC, according to which, among other things, the right to claim under the said real estate pledge agreement was transferred.

The plaintiff considers the real estate pledge agreement invalid, since it does not comply with the provisions of the law, according to which it is not allowed to foreclose on a dwelling owned by a citizen, if for a debtor citizen and members of his family living together in the owned premises, it is the only one suitable for permanent residence.

Since this transaction is invalid, then, accordingly, it does not entail any legal consequences.

In connection with the foregoing, the plaintiff filed this claim with the court.

At the hearing the representative of the plaintiff lawyer Zhukov Oh.C. insisted on satisfying the claims in full, cited arguments similar to those set out in the claim. Additionally, she explained to the court that the limitation period for applying to the court with this claim was not missed by them, since this transaction is void as inconsistent with the provisions of the law.

The representative of the defendant PJSC Rosevrobank did not recognize the claims at the court session, considered the stated claims unfounded, asked to apply the limitation period to the claim, since the disputed transaction is not void, but is a contestable transaction.

The representative of the defendant, Alliance LLC, did not recognize the claims at the court session, supported the arguments of the representative of the defendant PJSC Rosevrobank, and also asked to apply the statute of limitations to the stated claims.

The representative of the third party of the Department of Rosreestr for the city of Moscow did not appear at the hearing, he was notified about the day of the consideration of the case.

After listening to the parties, examining the materials of this civil case, the materials of the enforcement proceedings against the plaintiff on foreclosure on the pledged property, the court comes to the following.

The court established that a loan agreement was concluded between the plaintiff and the defendant PJSC Rosevrobank, according to which the plaintiff received a loan of funds in the amount of 2,500,000 rubles. for 60 months. The loan was received for consumer needs.

As security for loan obligations, the Bank entered into an agreement with the plaintiff to pledge real estate - a one-room apartment located at the address: Moscow, st. Butyrskaya, 6, with a total area of ​​37.3 sq.m. The contract was registered in accordance with the procedure established by law with the Federal Registration Service for the city of Moscow.

Subsequently, the Bank entered into an agreement on the assignment of rights of claim from Alliance LLC, according to which the right to claim against the plaintiff under the loan agreement, as well as under the real estate pledge agreement, was transferred.

By the decision of the Butyrsky District Court of the city of September 10, 2014, in favor of Alliance LLC, the plaintiff Kiryanov and the guarantor Sviyazhsky were jointly and severally collected the debt under the loan agreement in the amount of the principal debt, interest, penalty, state duty, expenses for paying for the examination. Foreclosed on the pledged property - an apartment at the address: Moscow, Butyrskaya, 6.

According to the court, the claims stated in the present case are subject to satisfaction in connection with the following.

By virtue of Article 168 of the Civil Code of the Russian Federation, a transaction that does not comply with the requirements of the law or other legal acts is void, unless the law establishes that such a transaction is voidable, or does not provide for other consequences of the violation.

In accordance with paragraph 1 of Art. 1 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)” under an agreement on pledge of real estate (mortgage agreement), one party - the pledgee, who is a creditor under an obligation secured by a mortgage, has the right to receive satisfaction of his monetary claims to the debtor under this obligation from the value of the pledged real estate of the other party - the pledgor, predominantly over other creditors of the pledgor, with exceptions established by federal law.

Paragraph 2 of Article 6 of the said Federal Law establishes that the mortgage of property withdrawn from circulation, property on which execution cannot be levied in accordance with federal law, as well as property in respect of which mandatory privatization is provided in accordance with the procedure established by federal law, or whose privatization is prohibited.

So, according to paragraph 2 of part 1 of Art. 446 of the Code of Civil Procedure of the Russian Federation, execution under executive documents cannot be levied on property owned by a citizen-debtor on the right of ownership, and in particular, on residential premises (parts of it), if for a citizen-debtor and members of his family living together in the owned premises, it is the only premises suitable for permanent residence, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and it can be levied in accordance with the legislation on mortgage .

Article 78 of the Federal Law of July 16, 1998 N 102-FZ “On Mortgage (Pledge of Real Estate)” allows for the pledgee to foreclose on a mortgaged residential house or apartment and sell this property, provided that such a residential house or apartment was mortgaged under a mortgage agreement or under a mortgage by virtue of law to secure the repayment of a loan or a target loan provided by a bank or other credit institution or other legal entity for the purchase or construction of such or other residential house or apartment, their overhaul or other inseparable improvement, as well as for the repayment of previously granted loans or a loan for the purchase or construction of a residential house or apartment.

From the interpretation of the above provision of the Federal Law, it follows that foreclosure on a mortgaged residential building or apartment with termination of the pledgor's right to use them is possible only on the condition that such a residential building or apartment was mortgaged under a mortgage agreement to secure the repayment of a loan or loan with a strictly defined target purpose: the acquisition or construction of a mortgaged or other residential house or apartment, their overhaul or other inseparable improvement, as well as the repayment of a previously granted credit or loan for the purchase or construction of a residential house or apartment.

The specified norm also provides for the possibility of levying execution on residential premises that are the subject of a mortgage by virtue of the law (Federal Law of December 30, 2004 No. 214-ФЗ “On participation in shared construction of apartment buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation”) .

As established by the court during the consideration of this civil case, the intended purpose of the loan received by the plaintiff does not meet the requirements of paragraph 1 of Article 78 of the Federal Law “On Mortgage”, real estate (apartment), which is the subject of the pledge agreement, is the only residential premises suitable for the plaintiff (both at the time of the conclusion of the pledge agreement, and today), respectively, foreclosure is not allowed on this residential premises.

Thus, the housing pledge agreement disputed by the plaintiff does not comply with the law, and, therefore, by virtue of Article 168 of the Civil Code of the Russian Federation, is invalid (void).

According to Art. 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment it is made.

In this regard, the court considers it possible to apply the consequences of the invalidity of the transaction, namely, to cancel the entry in the Unified State Register of Rights to Real Estate and transactions with it on the restriction of the right (mortgage) to residential premises located at the address: Moscow, st. Butyrskaya, 6.

The arguments of the representatives of the defendants on the application of the limitation period to the stated claims, the court considers untenable.

Thus, according to Article 195 of the Civil Code of the Russian Federation, the limitation period is recognized as the period for protecting the right on the claim of a person whose right has been violated.

In accordance with Article 181 of the Civil Code of the Russian Federation, the limitation period for a claim to apply the consequences of the invalidity of a void transaction is three years. The running of the limitation period for the specified claim begins from the day when the execution of this transaction began.

The limitation period for a claim to recognize a voidable transaction as invalid and to apply the consequences of its invalidity is one year. The running of the limitation period for the specified claim begins from the day the violence or threat under the influence of which the transaction was concluded ceases (paragraph 1 of Article 179), or from the day when the plaintiff learned or should have learned about other circumstances that are the basis for declaring the transaction invalid.

The court, recognizing the transaction (apartment pledge agreement) as invalid, referred to the provisions of Article 168 of the Civil Code of the Russian Federation, i.e. on the inconsistency of this transaction with the provisions of the law, due to which such a transaction is precisely void, and not contestable, as the defendants point out.

Accordingly, the limitation period for bringing this claim to court is three years from the date of commencement of enforcement. The plaintiff did not miss this deadline.

In accordance with Article 98 of the Code of Civil Procedure of the Russian Federation, the party in whose favor the decision of the court was held, the court awards reimbursement on the other side of all expenses incurred.

On this basis, from the defendants in favor of the plaintiff in equal shares, the state fee paid by the plaintiff when filing a claim with the court is to be recovered in 100 rubles. from everyone.

Guided by Articles 12, 56, 194-198 of the Code of Civil Procedure of the Russian Federation, the court

I DECIDED:

Claims Kiryanova A.C. to satisfy.

To invalidate the contract of pledge of real estate (apartment) concluded between the plaintiff and PJSC «RosEvrobank» in respect of residential premises located at the address: Moscow, st. Butyrskaya, 6, with a total area of ​​37.3 sq.m. The court decision in this civil case, which has entered into force, is the basis for the authorized state body for registration of transactions with real estate, for the cancellation of the entry in the Unified State Register of rights to real estate and transactions with it on the restriction of the right (mortgage) to residential premises.

To collect from PJSC "RosEvrobank", Limited Liability Company "Alliance" in favor of the plaintiff the costs of paying the state fee in equal shares.

Illustration: Pravo.ru/Petr Kozlov

Secured transactions are invalidated according to the same rules as ordinary transactions, but there are some peculiarities. Lawyers explained why it is now more difficult to challenge transactions than before, what their bankruptcy risks are, and when a violation of corporate procedure will not help invalidate the contract. We also give an example of an arbitration case, when the security was declared invalid due to misrepresentation.

Security measures, such as collateral or guarantees, are used for real estate contracts, large loans, and other significant transactions. They should give the lender confidence in a "plan B" in case of problems of the counterparty. However, unscrupulous debtors are trying in every possible way to challenge the security transactions in order to deprive the creditor of one of the fastest and easiest ways to repay the debt, says lawyer Natalya Lopatina.

Why is it harder to argue?

Security transactions are generally invalidated according to the same rules as ordinary transactions. The general grounds for contesting from the Civil Code, such as sham, pretense, abuse of authority, etc., are now used much less frequently, Dmitry Konstantinov from a law firm shares his observations. The lawyer explains this by the effectiveness of special rules - on insolvency or corporate ones. In addition, in 2013, a new version of Art. 166 of the Civil Code on voidable and void transactions, which significantly limited the possibilities of challenging them, continues Yury Pustovit, managing partner of AB.

Mortgages and guarantees are challenged no less than before, but the courts have begun to refuse more often.

Yury Pustovit, Managing Partner, Yug

In particular, Art. 166 consolidated the principle of estoppel: a person cannot seek to have a transaction recognized as invalid if previously it behaved as if it were valid. In addition, earlier, “any interested persons” could demand the application of the consequences of the invalidity of the transaction, but now it is the parties or other persons specified in the law.

The practice has also stabilized on such a basis for contesting the guarantee of individuals as the lack of consent of the spouse. 10 years ago, this was one of the most popular ways to cancel security, recalls Dimitri Nurzhinsky from. But on July 12, 2012, the Plenum of the Supreme Arbitration Court issued a resolution in which it explained that the guarantor was personally responsible - and, therefore, the absence of the consent of the spouse does not indicate the invalidity of the transaction. This position concerned individual entrepreneurs, but in 2013 he applied the same approach in the case of ordinary citizens (case No. 18-KG13-27), says Nurzhinsky. Despite the unequivocal decision and established practice, banks are reinsured and continue to require the notarized consent of the spouse for suretyship, the lawyer shares.

Registers also help to stabilize the turnover. The pledge is terminated if the pledged object was acquired by a bona fide buyer who was not aware of the encumbrance (part 2, clause 1, article 352 of the Civil Code). Real estate is "protected" from this by the rights registration system, but such schemes are common in the car sales market, Nurzhinsky says. The courts, according to him, were not always ready to apply Art. 352, therefore, in 2014, the legislator introduced a system for registering a pledge of movable things with a notary (Article 339.1 of the Civil Code).

Bankruptcy and corporate disputes

In bankruptcy, it is much easier to invalidate a transaction. A mortgage or suretyship may be challenged on the grounds that it caused harm to creditors or was made in favor of one of them. If it is confirmed in court that the creditor knew or should have known about the pre-bankrupt state of the debtor, the transaction is declared invalid.

Contracts concluded within three years prior to the initiation of insolvency proceedings may be at risk of bankruptcy, warns Alexander Anchugov, head of the legal support department for development projects.

Other grounds for contestation are corporate. Major transactions or related party transactions must be approved within the firm in accordance with its documents and law. If the procedure is violated, then the contract may be declared invalid, provided that the creditor knew or could have known about the violation. Therefore, it is important for him to check the corporate structure of the counterparty in advance and make sure that the transaction is approved in accordance with all the rules. This is a common ground for contesting a pledge, although it may turn out during the trial that the contract was actually approved or the statute of limitations has passed, says legal practice consultant Georgy Murzakaev. You can defend yourself against such claims, including by pointing out the bad faith of the opponent. Recently, the importance of the institution of abuse of rights has increased, Murzakaev draws attention. He gives examples of decisions that "stood" at the level of the Economic Board of the Armed Forces:

• In case No. A58-8432 / 2014, the AYAM Management Company disputed the mortgage of real estate, which was mortgaged under the company’s loan by the controlled Association of Builders of the Amur-Yakutskaya Mainline. As stated in the lawsuit, the pledge was not approved by the general meeting of participants. Although corporate approval rules were violated, the courts refused to invalidate the deal. They considered that the main goal was to free the mortgagor, who had real assets, from the mortgage, which means that the company abused the right to challenge the transaction. In addition, the majority participant approved the mortgage after all.
• In case No. A40-186355/2015, Oil Depot No. 1 tried to invalidate a mortgage that was approved at an extraordinary general meeting of participants, but should have been at the board of directors. But the courts rejected the claims. They noted that the necessary quorum had been reached. And the lawsuit was filed in order to evade the execution of the transaction and cause losses to the bank.

Other grounds for contestation and minimization of risks

Transactions may also be challenged on other grounds known to every lawyer. For example, the power of attorney did not give the authority to enter into just such an agreement, or it turned out that the subject of the mortgage does not actually belong to the mortgagee (for example, the contract for the sale of a building was declared invalid). People often try to challenge the building's mortgage on the grounds that the site under it is not mortgaged, says Pustovit from AB Yug. According to the lawyer, the courts tend to dismiss such claims: they explain that registration of rights to land depends only on the pledger, and the pledgee has nothing to do with it.

There are also relatively rare ways of challenging. Murzakaev cited case No. A40-216102/15 as an example. In it, the court invalidated the pledge agreement for a share in the authorized capital of an LLC as security for a bank guarantee of Peresvet Bank, since the bank misled the pledger-individual. The first and second instances drew attention to the fact that the main security had already been provided, and the share pledge agreement was concluded additionally, after the issuance of a bank guarantee and at the request of the bank. What was the meaning of this, the representatives of the bank did not explain. The courts came to the conclusion that they misled the citizen and demanded to conclude a deal that was not necessary. So, it should be declared invalid.

In one of the cases, the courts invalidated the share pledge agreement, because the pledger-individual was misled: there was no need for a transaction.

It is difficult to foresee such a risk, but the most frequent ones can and should be prevented. This is what lawyers do, whose task is to carefully study the documents, request the missing ones and correctly structure the transaction. How to protect the interests of both parties to the transaction, says Lopatina from the "Commonwealth of Land Lawyers" on the example of the purchase and sale of a plot with a "wrong" purpose. The buyer wants to purchase an agricultural land and build a cottage settlement on it. The seller promises that he will change the purpose of the land, but, of course, at the expense of the advance. “Here you need to conclude a preliminary agreement or a contract for the sale of a future thing - a plot with a legal regime for housing construction,” says Lopatina. “The term for concluding the main contract must be strictly tied to the moment the required type of use of the site is entered into the USRN.” To register it, the seller will receive an advance from the buyer. In case it is not possible to change the purpose of the land, Lopatina suggests connecting a financially reliable guarantor who guarantees the return of the advance.

Mortgages are often not enough to get a loan for business needs; banks require a personal guarantee from the CEO or members of the legal entity. As a result, these people become responsible for multi-million and multi-billion dollar debts, which, most likely, they will not be able to pay off. It is difficult to invalidate such a surety because the courts are trying to keep the security, says senior lawyer Tatiana Voronina: “They reject arguments that the debt was already there at the time of the surety or that the amount was not specified in the contracts. Also, the courts do not take into account that the guarantor did not have sufficient property to pay the debts (and it is clear that there will not be any more).”

Voronina is sure that banks enter into agreements not to receive funds, but to control the guarantor under fear of bringing him to joint and several liability. She recommends the heads and participants of companies to apply in writing to the bank with a request to do without a guarantee or try to change its conditions. You can try to limit the liability to those debts that arise during the period of office of a particular person. Otherwise, you will have to answer for the subsequent ones - after the citizen ceases to control society, Voronina concludes.